Deontay Wilder and Alexander Povetkin head to appeal

May 25, 2018

The Deontay Wilder-Alexander Povetkin legal drama will not end.  The parties have given notice that they are appeal the federal district court’s decision.

Letter From Wilder 05.25.18 Appeal by JASONCRUZ206 on Scribd

The Southern District Court of New York has had a trial and summary judgment motions in this contentious lawsuit over whether Povetkin’s failed drug test for Meldonium was a breach of the fight contract between the parties or whether Wilder not heading to Russia, where the fight took place, was a breach of the contract.

Thus far, a jury found that Povetkin ingested Meldonium post-January 1, 2016.  The Court affirmed the jury decision after a Motion for Reconsideration and/or New Trial  by Povetkin (and his promoters at World of Boxing)was denied.  Yet, in litigating the other causes of action, the court determined on Summary Judgment that Povetkin did not breach the Bout Agreement although a jury trial determined that Povetkin ingested Meldonium and concluded that a VADA test on April 27, 2016 showed Meldonium in his system.  The court deferred to the WBC’s discretion to rule on culpability for its anti-doping program.  As such, the court concluded that since the WBC believed that Povetkin did not violate the Bout Agreement.

From our previous post on this issue:

In this case, after issuing several conflicting and indecisive rulings, the WBC finally decided on November 7, 2017 that notwithstanding the jury’s verdict in this case, it would adhere to its earlier decision that it was not possible to determine whether Povetkin ingested Meldonium after January 1, 2016.  In other words, the WBC exercised its discretion to determine that Povetkin did not violate the CBP [Clean Boxing Program, the drug testing entered into by the boxers].”

In addition, the Court has released the escrow funds held up by Deontay Wilder after the fight did not go forward.  However, the Court did not grant WOB the $2.5 million in liquidated damages that was included in the escrow agreement which would have been triggered if it was found that there was a breach.  The Court noted that there was not a judgment filed against Wilder and that his representatives made the objection for disbursement in accordance with the agreement.  The Court did not find a breach of implied covenant of good faith and fair dealing. It also did not find Wilder guilty of breaching the Bout Agreement for not showing up in Russia for the fight as the Court opines that there was no evidence of his absence for the fight in Russia caused the cancellation.

The District Court ordered the release of the money held in escrow of over $7.1 million dollars.

A cause of action by Povetkin for defamation against Wilder was not litigated, but its likely that this will be determined after the appeal.

Payout Perspective:

It only makes sense that this case was going to be appealed.  Both sides are appealing ruling from the court.  Wilder is appealing the Summary Judgment ruling which essentially overturned a trial court decision that Povetkin took Meldonium.  Povetkin might be seeking to go after Wilder for breach of the Bout Agreement and obtain a $2.5 million liquidated damages award that is a part of the escrow agreement.  The legal drama shall continue and MMA Payout will follow.

Wilder and Povetkin/World of Boxing legal drama not over yet

May 2, 2018

The Deontay Wilder-Alexander Povetkin legal drama continues despite a Motion for Summary Judgment motion that seemingly answered all the questions left in the lawsuit.  All, except for when World of Boxing (“WOB”), Povetkin’s promoters might recoup the money that has remained in escrow since the start of this dispute.

We’ve covered the exhaustive background of this case since the lawsuit was filed.  For background from beginning, check this post and for the most recent filing you can look here.

On April 25th, the court entered an Order which relied on a U.S. Supreme Court case, Hall v. Hall, which determined whether consolidated cases under the Federal Rules of Civil Procedure are “immediately appealable upon an order disposing of that case.”  In this case, the World of Boxing has a claim for defamation which was stayed pending resolution of the rest of the claims.  The Court is concerned that the parties have not litigated this portion in the lawsuit assuming no final judgment would be filed.

Order dated 4.25.18 by JASONCRUZ206 on Scribd

However, the World of Boxing presented a Notice of Presentment of Proposed Final Judgment last week for the Court to sign which would have allowed for WOB to present to the escrow agent and disburse funds back to WOB.

A telephone conference originally set for April 26th has been moved back to May 10th.  The parties are expected to address the situation.

Ahead of their teleconference, the parties were offered to address the issue in letter form to the court.

Wilder sent a letter dated April 24, 2018 to the court:

Letter From Deontay Wilder 4.24.18 by JASONCRUZ206 on Scribd

The biggest argument in the letter was that the Court’s April 19, 2018 Opinion and Order granting in part and denying in part the parties’ motions for summary judgment, had the effect of dismissing “all claims” except the defamation claim.  WOB’s attorneys noted, “Judge Gorenstein concluded that the Bout Agreement granted complete discretion to the WBC to decide any doping question in this case, which had the effect of overruling the jury’s verdict that Povetkin ingested meldonium when it was banned.  It also pointed out that the Opinion and Order did not direct entry of a final judgment.

In its letter, it argues that consolidated cases retain their separate identity “to the extent that final decision in one is immediately appealable by the losing party.”  Here, WOB cites the U.S. Supreme Court in Hall v. Hall.

On the same day, WOB responded:

Letter From WOB 4.24.18 by JASONCRUZ206 on Scribd

Wilder argued that the Hall case differed from the instant case.  Wilder’s attorneys argued, “[I]t would make no sense and ill-serve judicial economy to grant Defendants’ request for entry of two separate judgment on the same claims in two different cases.  To the contrary, such a result would sow serious confusion before this Court and on the appellate level, and there is no precedent to support that outcome.”

Payout Perspective:

 From WOB’s perspective, the argument by Wilder is seemingly a way to prolong the litigation to prevent WOB from receiving the millions of dollars kept in escrow.  The fundamental legal argument is whether the defamation claim is separate from the other claims made by the parties.  The U.S. Supreme Court case has varied interpretations by the parties.  Wilder believes that there should be one entry of judgment while WOB believes that there could be two judgments made for the one case.  Once again, it appears that the Court was not clear in its ruling as its Order deciding the Motions for Summary Judgment could have outlined the issue or gave guidance as to whether an entry of judgment should occur or pending the litigation of the defamation claim.  The question one might ask, is whether dismissing the claim would allow for this case to end barring appeal.  We will see May 10th.

What was the court thinking in Povetkin-Wilder?

April 26, 2018

The ruling in the Alexander Povetkin-Deontay Wilder case last week was a surprise for many that have been following the case.

Opinion and Order by JASONCRUZ206 on Scribd


The lawsuit was based upon a drug test which Povetkin failed in lead-up to a fight with Wilder in Russia.  Wilder did not travel to Russia after learning of the failed drug test.  Wilder first sued Povetkin and his promoter World of Boxing as a result of Povetkin’s failed test.  Povetkin filed counterclaims against Wilder for failing to go to Russia 7 days prior to the bout date to which Povetkin claims was a breach of the Bout Agreement.  He also filed defamation claims against Wilder for bad-mouthing the heavyweight after drug test results revealed he took Meldonium.

The Court opinion deciding the Summary Judgment motions relied on the Bout Agreement which was subject to the World Boxing Council’s Rules and Regulations.  It cited language in the Agreement which stated that “any dispute or controversy” would be bound by the Rules and Regulations of the WBC.

Another layer of this dispute revolves around purse money placed in escrow for the fight.  Wilder had written the escrow company to hold the money until a court decided the outcome.  Povetkin and World of Boxing objected to this and sued claiming a violation of the duty of good faith and fair dealing.  In addition, they claimed that Wilder had violated the terms of the Bout Agreement and should be subject to a liquidated damages clause of $2.5 million.  Wilder was due $4.5 million to fight Povetkin while Povetkin was due $1.9 million.  In addition, there was a $715,000 bonus for the winner.

In February 2017, a jury just took 32 minutes to determine that Povetkin took the banned substance Meldonium post-January 1, 2016, however that did not mean much in the outcome of this Summary Judgment motion.

One of the overarching issues in the lawsuit as to who is to blame for the failed fight in Russian in May 2016.  You might infer from the news of a failed drug test from Povetkin that it was the Russian.  However, Povetkin claimed that Wilder’s failure to appear in Russia forced the hand of the regulating body, the WBC, to call off the fight.

The WBC Bout Agreement takes precedent here as the Court examines the contract in applying basic contract principles.  But in its application, there seem to be things that don’t make sense.

“We begin by noting that the Bout Agreement contains no language mandating that each fighter refrain from ingesting banned substances.”

The inference one might yield from this sentence of the Court opinion is that tis ok to used banned substances.  Based on this, the Court held that Povetkin did not breach the Bout Agreement because it cannot conclude when/if he ingested the banned substance Meldonium. Obviously, this is opposite the jury finding.

The good news for Wilder is that there was no finding of a breach of the Bout Agreement when Wilder did not go to Russia for the fight with Povetkin.  The Court notes, “[t]here is simply no evidence that the WBC’s postponement decision was a “normal or foreseeable consequence” of Wilder’s actions, or that Wilder’s acts otherwise caused the WBC’s decision.”  Povetkin and World of Boxing sought $2.5 million in liquidated damages that was part of the Escrow Agreement.  “While the WOB Parties argue that it was Wilder’s failure to appear in Moscow, rather than Povetkin’s positive test result, that caused the WBC to postpone the Bout…no reasonable jury could indulge in the speculation that would be required to conclude that this was so,” stated the Court opinion.  It went on to state, “[B]ecause a reasonable jury could not find that any breach by the Wilder Parties proximately caused the WOB Parties’ damages, the Wilder Parties’ motion for summary judgment dismissing the WOB Parties’ claim for breach of the Bout Agreement is granted.”

As for the escrow funds, World of Boxing is entitled to its release held in escrow but no interest because no judgment was entered against Wilder.

The claims for defamation filed by Povetkin remain although they may be dismissed pending further movement in this case.

The Court opinion seems to fly in the face of the original jury finding that Povetkin took Meldonium post-January 2016.  The opinion seems to lean entirely on the WBC Agreement for its determination on its procedure in determining the status of Povetkin based upon his drug tests.  The Court quotes WBC Rules and Regulations when it notes, “the WBC may in its discretion consider all factors in making a determination regarding responsibility, relative fault, and penalties, if any.”

The WBC did not issue a ruling on Povetkin’s positive drug test until August 17, 2016.  It noted that it called the bout off and reserved any further ruling.  It then determined that it was not “possible to ascertain that Mr. Povetkin ingested Meldonium after January 1, 2016.  After two additional rulings by the WBC which opposed the August 17, 2016 ruling, it overturned the decision and stuck with its August ruling.  It based this on a study showing Meldonium having the ability to stay in one’s system for more than five months.  It also noted Povetkin had negative drug tests six other times.

The WBC seemed to be dragging its feet in this case as it put off the ruling on Povetkin despite the litigation moving ahead.  There’s also the issue of Povetkin’s positive test for ostarine which happened after the lawsuit began.  Yet, the WBC did not penalize him for this and even stressed negative drug tests notwithstanding the two positive tests for Meldonium and ostarine.

This ruling seems ripe for an appeal.  The jury verdict seems to fly in the face of the Court’s ruling last week which seemed to defer to the WBC’s handling of the Povetkin matter.  Wilder’s side may just put this case behind them unless Povetkin is allowed to pursue its defamation claim.

Canelo agrees to NAC suspension for drug test failure

April 18, 2018

At Wednesday’s Nevada Athletic Commission disciplinary hearing, Canelo Alvarez entered into an Adjudication Agreement agreeing to a six month suspension of his boxing license for failing two drug tests with the presence of the banned substance Clenbuterol.

MMA Payout has obtained a copy of the Adjudication Agreement from the NAC via public records request:

Saul Alvarez – Adjudication Agreement – Signed by JASONCRUZ206 on Scribd

Payout Perspective:

The six-month suspension seems fair considering Alvarez denies wrongdoing but decided not to defend his claims.  The suspension, convenient or not, allows Alvarez to return to the ring in September right around the time of Mexican Independence Day weekend – a traditional boxing PPV date.  The Agreement includes a paragraph citing that Alvarez denies intentionally taking Clenbuterol and another indicating he believes the cause was due to contaminated meat.  Regardless, this gives Alvarez the spring off to get ready for September.  Will there still be bad blood between Alvarez and the commission if/when he’s allowed to concern?  Or, will Golden Boy put it past them when their fighter comes back (and decides the venue of the event) considering the amount of money they’ll make when Canelo finally gets in the ring with GGG.

Canelo withdraws from May 5th rematch with GGG

April 3, 2018

Golden Boy Promotions announced today that Canelo Alvarez has withdrawn from the fight against Gennady Golovkin.  Alvarez was temporarily suspended by the Nevada Athletic Commission due to failing a pair of drug tests for the banned substance clenbuterol.

An April 18th hearing was schedule to determine the fate of the rematch between Alvarez and GGG.  The NAC sought to suspend Alvarez for 1 year due to the failed tests.

Alvarez and his promoters made the withdrawal official via conference call with the media on Tuesday.  Alvarez maintained his innocence that he is a clean fighter that does not use PEDs.

Their first fight drew $27 million in live-gate earnings and an estimated 1.3 million PPV buys.  Despite the belief that the NAC would not derail a rematch which drew so well this past September, the NAC took the test failures seriously.

Alvarez claims that the failed tests were due to tainted meat he consumed while training in Mexico.

GGG wants to fight on May 5th and a replacement for Alvarez is taking place.  The event on May 5th is likely to be moved from the T-Mobile Arena to the MGM Grand which is a smaller venue.

Alvarez’s one-year suspension with the NAC will date back to his first positive test on February 17.

Payout Perspective:

This is a shocking development and a blow for boxing fans as many had anticipated this rematch.  Withdrawing from the fight is interesting as it ensures that Canelo will not fight in Vegas until 2019.  We will see if this strains ties between Golden Boy and the NAC if/when Golden Boy decides to promote fights.  While Vegas is the de facto place for big fights, the commission’s stance to file an official Complaint against Alvarez may have the promotion look to New York or another venue for events.  HBO PPV is also a loser here as any replacement for Canelo will not draw as many buys as a the Canelo-GGG II PPV would have produced.

NAC files official complaint against Alvarez

April 1, 2018

ESPN’s Dan Rafael has obtained a copy of the Nevada Athletic Commission Complaint against Canelo Alvarez.  The 8-page Complaint outlines the violations stemming from two failed drug tests for the banned substance Clenbuterol.

Alvarez claims that the findings in his drug tests are a result of tainted meat he likely consumed while training for his May 5th fight in Mexico.  In the past, fighters in boxing and the UFC have been cleared of anti-doping violations due to tainted meat.  Still, the issue is being taken seriously by the NAC which has scheduled a hearing on April 18th.  As a result of the proximity of the hearing to the May 5th rematch with Gennady Golovkin, the huge fight which promises to do as well business-wise and maybe better than last September’s event is in jeopardy.

According to the Complaint, Alvarez failed two urine tests administered by VADA on February 17 and 20th.  The urinalysis was examined by the Sports Medicine Research and Testing Laboratory finding Clenbuterol in the samples.

Whether or not Alvarez intended to ingest the banned substance is of no significance according to the Complaint as it is the standard rule.  As a result, his license in Nevada has been temporarily suspended until the April 18th hearing.

Canelo Alvarez by JASONCRUZ206 on Scribd

Payout Perspective:

It’s interesting that there seems to be no urgency in resolving this matter prior to the May 5th event.  With a lot financially at stake, one would think that the parties, including the Commission, would want to expedite the hearing process.  The hearing will be very important and one would think that Alvarez’s lawyers would need to prepare a strategy which would show that it was likely that tainted meat was the cause of the findings.  This might mean providing a daily nutritional regiment for Alvarez which might pinpoint the kind of things he ate which may have caused the findings.

April 10th NAC hearing to determine Canelo-GGG II after Alvarez temporarily suspended

March 23, 2018

ESPN reports Canelo Alvarez has been temporarily suspended by the Nevada Athletic Commission after testing positive for the banned substance clenbuterol.  A hearing on April 10th will determine the fate of the rematch between Canelo and Gennady Golovkin.

Alvarez tested positive for clenbuterol in random urine tests conducted by the Voluntary Anti-Doping Association in Mexico on February 17th and February 20th.  Per commission regulations, the suspension was issued.  Alvarez claims that the positive tests were from eating contaminated beef due to a substance included in cattle feed because it helps reduce fat and increase lean muscle mass.  The substance is banned in the United States.

After the positive tests, the commission has required that Canelo take more tests as well as submit to questioning at the April 10th hearing.

The rematch with GGG set for May 5th is in jeopardy based on the commission findings next month.

Payout Perspective:

Cynically, we all feel that the commission will not step in the way of a fight that drew 1.3 million PPV buys and a gate of over $27 million.  If the commission granted Floyd Mayweather and Conor McGregor to change the size of their boxing gloves a couple weeks prior to the fight, I think your hotel reservations for Cinco de Mayo weekend are safe.  While the two positive tests may be of concern, I would think that Canelo and his camp will be able to devise a good explanation (backed by some evidence) regarding the positive tests.

Povetkin attorneys seek motion for new trial or judgment in its favor

March 14, 2017

Attorneys for World of Boxing and Alexander Povetkin have filed a motion for judgment as a matter of law and/or a new trial this past Friday.  The hearing is scheduled for April 21, 2017 before the trial court judge in New York.

A jury determined that Povetkin took the banned substance Meldonium after January 1, 2016.  It was the sole issue determined at trial.

World of Boxing and Povetkin attorneys intimated that they would be moving for either an appeal or this relief stating issues with the decision and conduct of Wilder’s attorneys.

Arnold & Porter Letter 02.12.17 by JASONCRUZ206 on Scribd

Under Federal Civil Rule of Procedure 50, Judgment as a Matter of Law is a motion that can be made during trial or after.  Essentially, it requests the judge take the decision out of the hands of the jury citing that the other party has not proven its case, and as a matter of law, should rule in favor of the moving party.

Under Federal Civil Rule of Procedure 59, a Motion for New Trial, may be requested any time within 28 days after the jury verdict.  It may be granted if there was a serious erroneous result or a miscarriage of justice.

Payout Perspective:

The motion is long and outside the bounds of the page length for a motion and the attorneys have asked attorneys to file extra pages.  The attorneys for World of Boxing and Povetkin claim that the jury verdict was not based on the evidence, the testimony of one of Wilder’s experts should not have been relied upon, the timing of the trial did not allow for all the questions to be answered and the purported misconduct of Wilder’s attorney.

The motion goes before the trial court judge which makes it somewhat hard for the moving party because they are arguing that the judge did not oversee their trial properly and thus must do it again.  These motions would be quicker than an appeal although it would seem that they are exhausting all options.  MMA Payout will return later with a substantive look at the claims.

Jury rules in favor of Wilder, Povetkin took banned substance meldonium

February 13, 2017

A jury in New York took just 32 minutes to determine that boxer Alexander Povetkin took meldonium after the substance was banned on January 1, 2016 per ESPN.

The 9-person jury, which included a chemist, made the decision on Monday after a 3 day trial in which both boxers attended.

Despite the verdict, there might be an appeal.  A letter dated February 12, 2017 by World of Boxing’s attorneys cited “gross and extensive misconduct” during the trial.  The letter was filed prior to Monday’s jury verdict we presume.

If there is no appeal, it appears that Wilder and his promoter Lou DiBella will receive a portion of the money still in escrow.  Wilder was due $4.5 million to fight Povetkin while there was a $715,000 bonus for the winner.  The attorney for Wilder and DiBella believes that the judge will release the funds.

Payout Perspective:

While its early, one would have to expect a Motion for New Trial and/or an appeal from World of Boxing based on the letter from their attorneys.  Still, the basic theory of the case by Wilder was that there were 4 VADA drug tests in April.  The first 3 did not show any traces of meldonium but the fourth one did.  Thus, he must have taken the banned substance after the third test.  World of Boxing argues that despite the negative tests, Povetkin had meldonium in his system from 2015 and it just was not picked up by the tests.

We will now see how much more legal fees World of Boxing will want to invest in this case.  MMA Payout will keep you posted.

Attorneys battle over experts in Povetkin-Wilder case

February 10, 2017

This week Deontay Wilder and Alexander Povetkin went to trial to determine whose fault it was that cancelled their fight in Russia this past May.

The sole issue to be decided at trial is whether Povetkin took Meldonium after January 1, 2016, the date that it was banned by WADA.

The trial is a battle of the experts with each side arguing about the admissibility of testimony and evidence.  The science of determining Meldonium in the system is key.  Povetkin admits to taking Meldonium in 2015 as prescribed by a physician.  However, he denies taking it after 2016.  WADA banned the substance on January 1, 2016.

Four VADA tests by Povetkin leading up to their anticipated fight in April 2017 occurred.  Povetkin’s VADA tests on April 7, 8 and 11, 2017 came up negative.  However, an April 27, 2017 test showed Meldonium.  World of Boxing claims that the Meldonium are traces from his 2015 use.

Trial began this past Monday.

Per a pretrial order dated January 31, 2017, the parties included specifics related to trial including experts.  The experts were to have submitted reports, the basis of their testimony, prior to the start of trial.  The Wilder legal team retained Anthony Butch, Ph.D. to testify about the testing of banned substances and the result of Povetkin’s tests as it relates to detection of Meldonium.  Essentially, Povetkin’s test results reveal he took Meldonium some time between April 11 and his last VADA test of April 27, 2016.  They also named Daniel Eichner, Ph.D. as a possible expert to testify regarding the positive test results.  He was added after World of Boxing added Dr. Douwe de Boer.

The World of Boxing team included several experts regarding the detection of Meldonium with the conclusion that Povetkin did not take the drug post-January 1, 2016.  This included Dr. Boris Simkhovich and Dr. de Boer.  Notably, Dr. de Boer was a late addition to the expert list and submitted a report which Wilder’s attorneys opposed.

On Thursday night, attorneys for Deontay Wilder requested to call Dr. Anthony Butch as a “very brief rebuttal witness” as it relates to World of Boxing’s expert, Dr. de Boer.  The claim to use Dr. Butch is that Dr. de Boer disclosed an “entirely new theory of the case” during his trial testimony.  Additionally, Wilder’s attorneys wanted to call Dr. Boris Simkhovich as a rebuttal witness.  However, Dr. Simkohovich was a designated expert of World of Boxing but was not called by the World of Boxing when they put on its case.

The new revelation addresses, according to Wilder’s attorneys, the reasons why Povetkin’s April 7, 8 and 11, 2016 urine samples had no detection of Meldonium but there was detection of Meldonium in his April 27, 2016 test: ion suppression.

Dr. de Boer was a late add as an expert by Wilder’s legal team.  The presiding magistrate, Judge Gabriel Gorenstein allowed Dr. de Boer to testify however he would have to submit to a deposition prior to trial as well as having an expert rebut the report.

The testimony from Dr. de Boer suggests due to ion suppression, Meldonium was not detected in the first three tests of April because the method of analyzing (mass spectrometer) did not pick up the Meldonium due to a competing molecule suppressing the Meldonium molecules.  But, the April 27th test contained residual Meldonium which it was able to pick up.

The claim is that Dr. de Boer’s theory is based on the late production of Dr. Butch’s raw data.  Despite submitting to a deposition, Dr. de Boer was precluded from answering questions about the report at his deposition per instruction from the Magistrate as the two sides butted heads over the issue.

They also wanted to call Dr. Simkhovich as a witness as Wilder’s side believed that his testimony was contrary to that of Dr. de Boer’s testimony which would seemingly show a flaw in World of Boxing’s case.

Attorneys for World of Boxing argue that Wilder’s problems are his own as the Court gave Wilder an option of deposing Dr. de Boer on Feb 1 or 2 or postpone the trial.  Wilder opted to go to trial and depose Dr. de Boer.  They also argue that Dr. de Boer’s report and data were provided to Wilder’s side prior to the deposition and they could have asked questions about it.  They also argue that Dr. Simkhovich cannot be used as a witness as he was not called by World of Boxing and would be inadmissible.

Payout Perspective:

The legal fights over inclusion of expert testimony occurs a lot and certainly each side wants to preserve their right to an appeal if needed.  The credibility of the experts will be key and the efforts to rebut testimony is a way for the legal teams to get the last say before a jury.

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